Time: Sun Sep 07 06:24:50 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id GAA02352 for [address in tool bar]; Sun, 7 Sep 1997 06:21:54 -0700 (MST) by usr03.primenet.com (8.8.5/8.8.5) with SMTP id GAA11073; Sun, 7 Sep 1997 06:19:23 -0700 (MST) Date: Sun, 07 Sep 1997 06:19:19 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Interesting citations on Tax / Income Tax (fwd) See #51. LET'S PULL THIS CASE NOW!!!! Would someone donate the funds necessary to purchase a certified copy of the entire case file? /s/ Paul Mitchell http://supremelaw.com <snip> > >Be sure to look up and READ the cases before using the remarks shown >for any serious purpose. HT > <snip> > > >Greetings to all, > >Here are some citations on the subject of taxes which I have >gleaned over the years. Food for thought. > > > TAX / INCOME TAX > >1. The legal right of a taxpayer to decrease > the amount of what otherwise would be his > taxes, or altogether avoid them, by means > within which the law permits, cannot be > doubted. > See: > Gregory v. Helvering, 293 US 465. > >2. The requirement of an offense committed > wilfully is not met, therefore if a > taxpayer has relied in good faith upon a > prior decision of the court. > See: > U.S. v. Bishop, 412, U.S. 346 (1973) > at 2017, 93 S. Ct 2008. > >3. One does not derive income by rendering > services and charging for them. > See: > Edwards v. Keith, 231 Fed Rep 110. > >4. The citizen is immune, has a right to be > free from such taxation and regulating, > duties, obligations, sanctions as a > matter of law. > See: > U.S. v. Texas, 384 U.S. 155; > Wilson v. U.S., 221 U.S. 361; > Pollack v. Flint, 158 U.S. 601, 157 > U.S. 428; > United States Constitution, Article > 1, Section 2, Clause 3, and Article > 1, Section 9, clause 4. > >5. Tips are gifts and therefore are not > taxable. > See: > Olk v. United States, February 18, > 1975, Las Vegas, Nevada. (Wendell > Olk) Judge Thomas W. Vlary. > >6. Who would believe the ironic truth that > the cooperative taxpayer fares much worse > than the individual who relies upon his > constitutional rights. > See: > United States v. Dickerson, 413 F 2D > 1111. > >7. Only the rare taxpayer would be likely to > know that he could refuse to produce his > records to Internal Revenue Service > agents. > See: > United States v. Dickerson, 413 F 2D > 1111. > >8. A person cannot be forced to submit > records for inspection. > See: > United States of America, and Fred > J. Rosauer, special agent IRS v. > Johanna Vam Poperin, U.S. District > Court, District of Minn, 4th > Division, 4-71 Civil 635. > >9. The Supreme Court argued that the IRS > could not use material gained by IRS > agents under a routine questioning for > what purported to be a routine audit." > The difference between a routine and a > criminal investigation was 'too minor to > justify departure from the Miranda > Doctrine." Justice White drew a mandatory > conclusion. "Indeed," he added, "the > Black opinion suggested that the Miranda > warnings are required through the > immensely broad area of investigations > which frequently lead to criminal > inquiries." (Fourth, Tax). > See: > The Mathis decision, (No. 726, May > 6, 1968, 3 910 S.) (Winterhaven, > Florida). > >10. "Mr. President, I invite the senate's > attention to certain correspondence I > have had with Internal Revenue Service > Commissioner Sheldon S. Cohen with > respect to the legal obligations of > citizens to keep records, produce > records, and answer questions relating to > tax liability. Criminal cases have been > veiled in civil clothing to obtain > information illegally. Taxpayers have > been bullied and threatened especially > small taxpayers and those without legal > assistance. What should taxpayers do when > faced with such a situation? Do all > lawyers even know what the obligations of > taxpayers are as to record keeping, > record producing, and question answering? > The answer seems to be "no". "For this > reason, I wrote to Commissioner Cohen on > April 17, 1967, and received his reply on > July 7, 1967. As his reply is most > instructive and will help Congress, as > well as taxpayers, their lawyers and > accountants, I ask unanimous consent that > the correspondence be printed in the > record." The following are excerpts from > the Commissioner Cohen's reply, which was > prepared by Chief Counsel Lester R. > Vretz, and denominated U.S. government > memorandum CC:C1---3487: > "Good faith challenges in the form > of constitutional and other federally > recognized privileges are of course > recognized by the service. For example, > the privilege against self-incrimination > under the Fifth Amendment may be a proper > basis by an individual taxpayer for > refusing to answer specific questions or > to furnish his records." Before > recommending prosecution under Section > 7201 or 7203, the service must usually > develop enough information to show a > substantial tax liability that was not > met in addition to criminal intent. . .. > The constitutional rights and other legal > rights of all persons will be fully > respected and observed. Senator Long of > Missouri. > >11. "In recent years, this court has > zealously guarded the Fifth Amendment > rights of citizens confronted with > possible penalties or prosecution for > violation of income tax laws . . .. In > the United States v. Dickerson, 413 F.D. > 111 (1969), we held that a Miranda > warning must be given to a taxpayer under > criminal investigation by the Internal > Revenue Service for possible criminal > investigation, see also > See: > United States v. Lackey, 413 F, 2D > 665 (1969); > United States v. Habig, 413 F.2D. > 1108 (1969) (We would vitiate the > effects of these decisions if we > ruled today that the government > could avoid all Fifth Amendment > considerations by merely obtaining a > search warrant). > >12. "Statutes levying taxes should be > construed, in case of doubt, against the > government and in favor of the citizen." > See: > Miller v. Gearing, 258 F. 225. > >13. Income Tax liability for any one year > constitutes a single cause of action. > See: > Lewis v. Reynolds, 284 U.S. 281. > >14. That the power to tax involves the power > to destroy. > See: > McCullock v. Maryland, 4 Wheaton > 316; > Crandall v. Nevada, 6 Wall 35, 46. > >15. Until a recent act of Congress, 304 of > which forbids discharge of employees on > the ground that their wages have been > garnished, garnishment often meant the > loss of a job. > See: > 82 Statutes 146, Act of May 29, > 1968. > >16. If the form of the return provided, > called for answers that the Defendant was > privileged from making, he could have > raised the objection in the return, but > could not on that account, refuse to make > any return at all. > See: > U.S. v. Sullivan, 274 U.S. 259, 263. > >17. Person cannot be forced to submit records > for inspection. > See: > United States of America, and Fred > J. Rosauer, special agent I.R.S. v. > Johanna Van Poperin, U.S. District > Court, District of Minn., 4th > Division, 4-71 Civil 635. > >18. The taxpayer is certainly free to plan > transactions, and he is not obligated to > choose an arrangement that produces > unfavorable tax results. > See: > United States Tax Court, 1976. > >19. Respondent is in fear of federal > prosecution for violation of federal tax > laws; and there is no federal statute > which would grant immunity to respondent > for the specific offenses set forth in 26 > U.S.C., Sections 7201 through 7210. In > the absence of a federal statute granting > immunity for the specific offense to > which the question relates, states cannot > compel disclosure. > See: > Mulloney v. United States, 79 F 2D > 566, and > United States v. Johnson, et al., 76 > F. Supp., 538. > >20. We have held that a taxpayer must assert > his privilege against self incrimination > to answering any of the questions on the > returns, the objection must be stated in > response to those specific questions. > See: > Garner v. United States, 501 Fed. 2d > 228; affirmed as within the law and > affirmed March 23, 1976, 74 S. Ct. > 100. > >21. The taxpayer may refuse to answer > specific incrimination questions on the > return, but he cannot refuse to file the > return. (34 Am. Jur. 2D Federal Taxation, > Paragraph 9388, and > See: > U.S. v. Sullivan, 274 U.S. 259.) > >22. You must file a return, but if you > object, you must state your objection to > each and every question. > See: > Heligman v. United States, 407 Fed. > 2d 448. > >23. Broad discretions given tax officers with > regard to investigations, is for > legitimate tax investigations and is not > a license for official harassment of the > citizenry. > See: > U.S. v. Cutter, 374 F. Supp. 1065. > >24. It is clearly established that all > citizens must file tax returns (like a > subpoenaed witness must appear and submit > to questioning) despite hazards of self > incrimination . . .. The court intimates > that full disclosure of the amounts and > sources of income must be made, unless > the taxpayer makes an objection to his > return asserting his privileges not to > incriminate himself. > See: > Unites States v. Sullivan, 274 U.S. > 259. > >25. Decisions of the tax court are reviewable > in the same manner and to the same extent > as decision of the district court sitting > in civil action without a jury. Court of > appeals is bound by factual determination > of the tax court unless they are found to > be clearly erroneous or unsupported by > substantial evidence on the record as > whole. (26 USCA IRC 1954 P 162 (a), (1). > See: > Charles Schneider & Co. v. C.I.R., > 500 F. 2d 148 Ca * 1974.) > >26. Of all the agencies of government who > have been most flagrant in violating not > only the spirit, but the letter of the > Freedom of Information Act has been the > Internal Revenue Service which has almost > become a national scandal. > See: > William G. Phillips, sub-committee > staff director of the Committee on > Government during the 1972 hearings: > >27. The Congress shall have the power to lay > and collect taxes, duties, imposts, and > excises, to pay the debts and provide for > the common defense and general welfare of > the United States; but all duties, > imposts, and excises shall be uniform > through the United States. Article I, > Section 8, Clause 1, of the United States > Constitution!!!! Some who have not denied > the necessity of power of taxation have > grounded a very fierce attack against the > constitution, on the language in which it > is defined. It has been urged and echoed > that the power "to lay and collect taxes, > duties, imposts, and excises, to pay the > debts, and provide for the common defense > and general welfare of the United > States," amounts to an unlimited > commission to exercise every power which > may be alleged to be necessary, for the > common or general welfare. No stronger > proof could be given of the distress > under which these writers labor for > objections, than their stooping to such a > misconstruction. > See: > Springer v. United States, 102 U.S. > 586, (1865). (quoting James Madison, > as to Article I, Section 8, Clause > 1, in the Federalist Paper No. 41). > >28. If the federal government should overpass > the just bounds of its authority and make > a tyrannical use of its powers, the > people whose creature it is, must appeal > to the standard they have formed, and > take such measures to redress the injury > done to the constitution as the exigency > may suggest and prudence justify. The > propriety of law, in a constitutional > light, must always be determined by the > nature of the powers upon which it is > founded. Suppose, by some forced > constructions of its authority (which, > indeed, cannot easily be imagined), the > federal legislature should attempt to > vary the law of descent in any state, > would it not be evident that in making > such an attempt it had exceeded its > jurisdiction and infringed upon that of > the state? Suppose, again, that upon the > pretense of an interference with its > revenues, it should undertake to abrogate > a land tax imposed by the authority of a > state; would it not be equally evident > that this was an invasion of that > concurrent jurisdiction in respect to > this species of tax, which its > constitution plainly opposes to exist in > the state government. > See: > Alexander Hamilton, in discussing > government's power to tax, > Federalist Paper No. 33. > >29. Tax---A ratable portion of the produce of > the property and labor of the individual > citizens, taken by the nation, in the > exercise of its sovereign rights, for the > support of the government, for the > administration of the laws, and as a > means for continuing the various > legitimate functions of the state. > See: > Blacks Law Dictionary, Revised > Fourth Edition. > >30. Congress may not, under the taxing power, > assert a power not delegated to it by the > constitution. > See: > Regal Drug Co. v. Wardell, 260 U.S. > 386. > >31. A tax, in the general understanding of > the term and as used in the constitution, > signifies an exaction for the support of > the government. The word has never > thought to connote the expropriation of > money from one group for the benefit of > another. > See: > United States v. William M. Butler, > 297 U.S. 1. > >32. The government asserts that even if the > respondents may question the propriety of > the appropriation embodied in the > statute, their attack must fail because > Article I, Section 8, of the Constitution > authorized the contemplated expenditure > of the funds raised by the tax. This > contention presents the great and > controlling question in the case. We > approach its decision with a sense of our > grave responsibility to render judgment > in accordance with the principles > established for governance of all three > branches of the government. There should > be no misunderstanding as to the function > of this court in such a case. It is > sometimes said that the court assumes a > power to overrule or control the actions > of the people's representatives. This is > a misconception. The Constitution is the > supreme law of the land ordained and > established by the people. All > legislation must conform to the > principles it lays down. When an act of > congress is appropriately challenged in > the courts as not conforming to the > constitutional mandate, the judicial > branch of the government has only one > duty---to lay the article of the > Constitution which is invoked beside the > statute which is challenged and to decide > whether the latter squares with the > former. All the court does, or can do, is > to announce its considered judgment upon > the question. The only power it has, if > such it may be called, is the power of > judgment. This court neither approves > nor condemns any legislative policy. Its > delicate and difficult office is to > ascertain and declare whether the > legislation is in accordance with, or in > contravention of, the provisions of the > Constitution; and, having done that, its > work ends. > See: > United States v. William M. Butler, > supra. > >33. Court of appeals is not empowered to set > aside tax courts factual findings unless > they are without support of substantial > evidence, or basis of the whole record, > court of appeals is left with the firm > conviction that justice has miscarried. > See: > Haman v. C.I.R., 500 F 2d 401, C.A. > 9, 1974.) > >34. Although taxpayer when filing earlier > return of enclosed letter protesting > government policies and proclaimed a > general intent to seek ways to resist > payment of taxes, since he did not repeat > protest in letter attached to W-4 form, > with employer showing that he had 20 > dependents rather than the previous > claimed 6 and did not in any way refer to > protest when asked for an explanation of > increase in number of dependents, his > conviction for wilfully supplying > employer with false or fraudulent > information about income tax withholding > could not be set aside on the theory that > his claim of dependents could have > deceived no one. > See: > She v. U.S., 506 F 2d 1226, C.A. Va > 1974. > >35. Subpoenas duces tecum requiring bank > president to appear and produce records > of defendant's bank account constituted > unlawful invasion of defendants privacy > and evidence obtained as result of such > subpoenas should have been suppressed > where they were issued by the United > States Attorney rather than by a court, > and no return was made upon subpoenas to > the court and subpoenas were issued for > dates when Grand Jury was not in session. > U.S. Constitution, Amendment 4, FDIC #2, > 12 USCA 1829 b. > See: > U.S. v. Miller, 500 F 2d 751, C.A. > Ga 1974. > >36. Under the Fourteenth Amendment, the > legislature is bound to provide a method > for the assessment and collections of > taxes that shall not be inconsistent with > the natural justice. > See: > Turpin v. Lenon, 187 U.S. 51, 60 > (1902). > >37. To lay with one hand the power of the > government on the property of the > citizen, and with the other to bestow it > on favored individuals to aid private > enterprise and build up private fortunes, > is none the less robbery because it is > done under the forms of law and is called > taxation. This is not legislation. It is > a decree under the legislative forms. > See: > Miller 20 Wall, 655, 663, 664 > (1874). > >38. Pennsylvania declares income tax, > graduated style, as illegal, and outlaws > it in the state of Pennsylvania. > See: > Amidon v. Kane, Pa. 279 A. 2d 53. > >39. Internal Revenue Service could not seize > private records even with a seizure > warrant. > See: > Vincent R. Hill v. Jay G. Philpott, > District Director of IRS, et al., > No. 18487, January Session, 1971: > The Seventh Circuit Court of > Appeals. > >40. The power to lay and collect taxes > conferred upon congress by Article 1, > Sec. 8, Clause 1, of the Federal > Constitution, broad as it is, may not be > invoked in such a way that it violates > the privileges against self- > incrimination. > See: > Williams v. Rhodes, 393 U.S. 23, 89, > S. Ct. 5, 21, L ed 2d 24. > >41. The primary purpose of Par. 7605 (b) of > the 1954 IRC, which provides that "no > taxpayer shall be subjected to > unnecessary examination or > investigations," is no more than to > emphasize prudent judgment in wielding > the extensive powers granted to them by > the Internal Revenue Code. > See: > U.S. v. Powell, 379, U.S. 48, 85. > >42. The decision of the collector of revenue > ceases to be conclusive when an appeal is > taken from his decisions. > See: > Arthur v. Unkart, 96 U.S. 118. > >43. Federal Courts must first determine what > property or rights to property an > individual has under state law in > applying an federal revenue act for > purpose of determining whether property > may be sold for unpaid taxes. > See: > Herndon v. U.S., 501 F 2d 1219, C.A. > Ark. 1974. > >44. Under Federal income tax statute allowing > IRS to levy on assets of taxpayer subject > to jeopardy assessment. Section provides > for stay of sale of seized property > pending tax court decision necessarily > overrides section providing generally for > authority of Treasury Secretary or his > delegate in any case in which he may levy > upon property to seize or sell such > property or property rights. > See: > Clark v. Campbell, 501 F 2d 108, Ca > tex 1974.) (26 U.S.C.A. IRC 1954, > 6331 a, b. (3)). > >45. IRS has been disallowed to make emergency > tax assessment, since agency has not been > giving taxpayers the procedural > safeguards the law requires, > See: > U.S. v. I.R.S., Jan 14, 1976, U.S. > Court Voted against IRS 5 to 3. The > majority ruling was by Justice > Thruston Marshall. > >46. . . . Internal Revenue Service cannot > prevail on a deficiency assessment and, > thus injunctive relief may be appropriate > when the asserted claim is entirely > excessive, arbitrary, capricious and > without factual foundation. 26 USCA IRS > Code Sec. 7421 (a), > See: > Shapiro v. Secretary of State, 499 F > 2d 527. > >47. Where right to refund of income taxes > paid is clear, mere difficulty in > determining, with exactitude the amount > of recovery, will not defeat the right. > See: > National service Inc., v. U.S., 379, > F Supp 831, D.C. Ga 1974. > >48. The purpose of statute providing that no > suit for recovery of any internal revenue > tax allegedly erroneously or illegally > assessed or collected, shall be > maintained until a claim for refund of > credit has been filed with Commissioner > of Internal Revenue, is to afford IRS an > opportunity" to consider and dispose of > claim without expense and time involved > in litigation and to prevent surprise on > the facts. > See: > Lemoge v. U.S., 378 F. Supp, 228 > D.C. Cal 1974. > >49. Where taxpayers did not raise issue of > denial of "due process" at trial in tax > court, the issue was inappropriate for > appellate consideration. > See: > Hayutin v. C.I.R., 508 F 2d 462, > C.A. 10,1974. > >50. In Federal Tax matters, congress can > condition taxpayers right to contest > validity of tax assessments right much as > it sees fit. > See: > Rockwell v. C.I.R., 512, F. 2d 882 > Ca 9 1975. > >51. The IRS cannot sue anyone and they are > not a branch of the Federal government. > See: > U.S. v. SYLVESTER A. ZIEBATH & RUSEL > J. JAGIM, CR 90-50040, WD US > DISTRICT OF SOUTH DAKOTA. > > > ======================================================================== Paul Andrew Mitchell : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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